Mar
31
Pendente Lite Relief: Maintaining the Marital Status Quo
Filed Under Divorce & Separation, Family Law Basics, Property & Asset Distribution | Leave a Comment
The need for temporary spousal support during the pendency of a divorce action is very common. All to often, a dependent spouse, who has assumed responsibility for the children and marital home, is left shouldering the financial burden of childcare and household expenses with little or no assistance from the other spouse. In these situations, most courts will award a spouse temporary child support or alimony while the divorce is pending.
The purpose of pendente lite relief is to try to maintain the financial status quo between spouses pending the resolution of a divorce action. The lifestyle maintained during the course of the marriage usually determines the appropriate level of support. A spouse can obtain such relief voluntarily by mutual agreement between his or her spouse or by court application.
An application for pendente lite relief should be made early in the divorce process to ensure that ongoing financial obligations are met and to protect the parties rights during the pendency of the divorce. Most pendente lite applications include the following requests: (1) contribution toward monthly expenses, including childcare, mortgage, utility bills and personal maintenance; (2) continuation of medical and dental insurance and contribution to the payment of unreimbursed health care expenses; (3) continuation of all other insurance, including homeowners, life and automobile policies; (4) reasonable restraints regarding the dissipation, encumbrance or transfer of marital assets; (5) payment of attorneys’ fees and costs; and (6) hiring of expert witnesses.
In considering an application for pendente lite relief, courts generally assess the financial needs of the supported spouse, the means of the supporting spouse, and the standard of living of the parties in providing a spouse with adequate maintenance and support. In some cases, the courts deny pendente lite applications because a spouse either has sufficient assets, financial resources or refuses to work when he or she has the capacity to do so.
Posted by Jason Medina,
Medina, Martinez & Castroll, LLC
Mar
28
NEW SERIES: Wiretapping and Divorce Law
Filed Under Assets & Debts, Divorce & Separation, Family Law Basics | Leave a Comment
Clients often ask me if secretly recording a spouse’s telephone conversations or accessing a spouse’s emails or text messages is against the law. I take a deep breath whenever I hear these questions because there is never a simple answer. The advancements in technology and the ease in which people communicate nowadays have resulted in a dramatic increase in incidents involving interspousal spying. In divorce cases, suspicion of infidelity usually serves as the impetus for clandestine monitoring of a spouse’s telephone calls, Internet activity, email transmissions and text messages. However, the act of intercepting the oral or electronic communications of a spouse may constitute a violation of both federal and state wiretapping statutes; statutes most clients are not aware of.
In New Jersey, a violation of the wiretapping statute gives rise to a cause of action and may result in both criminal and civil penalties. Generally, it is not a violation of federal and state wiretapping laws to record a conversation to which you are a party. However, secretly taping or recording the conversations of others, particularly an unsuspecting spouse, is. All to often, spouses looking for leverage in their divorce cases will resort to wiretapping to prove adultery or other acts of conduct likely to damage a spouse’s credibility at trial. Unfortunately, evidence obtained in violation of the state’s wiretapping statute is not only illegal, but also inadmissible at trial. In fact, clients who present such evidence to me are advised to immediately destroy any and all recordings and are further advised that they may have violated the law.
The issue of whether recording a spouse’s telephone conversations with a third party is a violation of the state’s wiretapping statute was addressed in the case of M.G. v. J.C., 254 N.J. Super. 470 (Ch. Div. 1991). In M.G., the husband had recorded his wife’s telephone conversations with her paramour within the marital home. The court held that is was a violation of the state’s wiretapping statute for the husband to surreptitiously record the telephone conversations of his wife with a third party. The court reasoned that the “right of privacy extends within the confines of the marital home” and that the act of recording a spouse’s telephone conversations constitutes a “severe invasion of privacy in a most egregious fashion.” The court awarded the wife $10,000.00 in compensatory damages, $50,000.00 in punitive damages, as well as $5,000.00 in attorney fees.
A spouse in a divorce action whose privacy was violated can file a civil action against the offending spouse on the grounds of invasion of privacy, which is a common-law tort in New Jersey. These types of claims, known as Tevis claims, are consolidated with the divorce matter and tried together. If the invasion of privacy claim is substantiated, then the offending spouse could be subject to substantial monetary damages, which could be collected by an offset against the marital assets. Moreover, a violation of the state’s wiretapping statute may also expose an offending spouse to criminal charges.
Up Next: Internet and Email Transmissions
Posted by Jason Medina,
Medina, Martinez & Castroll, LLC
Mar
7
Alternative Dispute Resolution Options for Divorce in New Jersey-Part IV: Arbitration
Filed Under Alternative Roads in Family Law, Divorce & Separation, Family Law Basics, Mediation & Collaboration in Family Law | 1 Comment
Mediation and arbitration, whether in a divorce context or not, are often confused and for good reason. Both are similar in many ways. Like mediation, arbitration is a confidential, cost-effective and expeditious alternative to traditional divorce litigation and courts of law. It requires spouses to voluntarily submit their divorce matter to a neutral third party, an arbitrator, who ultimately renders a final ruling on settlement. As in mediation, parties, usually agree on the selection of an arbitrator, who may be a matrimonial lawyer or a former judge but, in any case, are experienced and familiar with the many nuances of matrimonial law. In situations where spouses cannot agree on an arbitrator, a judge, if it’s a lawsuit, will often select one from a list submitted by the parties. The cost of arbitration can be shared or divided by the parties. It is often recommended that this issue be resolved prior to arbitration. The similarities between mediation and arbitration, however, end there.
The role of an arbitrator is similar to that of a judge without the formalities and limitations of the courtroom. The arbitration process is usually less formal than a trial in that parties can agree on what rules of evidence are to apply. Unlike a mediator, an arbitrator has power to impose a settlement on the parties over their objections, if the parties so choose. This is why choosing an experienced arbitrator is so important. Generally, the parties agree to be bound by an arbitrator’s ruling prior to arbitration unless they agree that the decision will be non-binding. If the parties agree to be bound by an arbitrator’s ruling, then the arbitration is considered binding and is virtually non-appealable, except in instances where one party can prove that the arbitrator was biased, committed a gross error of law, or exceeded his or her authority. On the other hand, non-binding arbitration may be more appealable. However, if the end result of an appealed arbitration decision is the same as the initial decision or more favorable to the other spouse, then the court may order the party who appealed to pay the other’s legal fees.
Spouses pursuing arbitration are encouraged to retain legal representation because unlike mediation, an arbitrator is not particularly focused on facilitating dialogue between the parties in an effort to resolve their differences. Instead, an arbitrator hears testimony, accepts evidence and renders a decision based on his or her assessment of the parties’ positions. Attorneys are permitted to attend arbitration sessions, sometimes helping to conduct them as quasi-trials, and can ensure that their client’s best interests are advanced before an arbitrator. If binding, once an arbitrator renders a ruling, it is submitted to the court for filing by way of court order. Arbitration can also be used in conjunction with the courts. In some divorce cases, a disagreement over a particular issue can derail the process entirely. In such instances, an arbitrator may be called to help settle the matter in order to move the divorce case along.
For those interested in arbitration, the American Arbitration Association and National Arbitration Forum provide valuable information and other resources.
Posted by Jason Medina,
Medina, Martinez & Castroll, LLC
Mar
5
Alternative Dispute Resolution Options for Divorce in New Jersey-Part III: Mediation
Filed Under Alternative Roads in Family Law, Divorce & Separation, Family Law Basics, Mediation & Collaboration in Family Law | Leave a Comment
Whenever I suggest mediation to my clients as an alternative to traditional divorce litigation, the suggestion is always met with the same response: “What is mediation?”
Well, divorce mediation is not a brand-new idea. It has been around for many years and has increasingly become the preferred alternative to the courts in settling divorce matters. It is important, therefore, for spouses contemplating divorce to become familiar with mediation, as well as other options for alternative dispute resolution.
Private divorce mediation is a voluntary and confidential, and is intended to be a non-adversarial process. It costs substantially less than litigation and affords parties the opportunity and flexibility to ultimately structure their own divorce settlement agreement, rather than permit the courts to impose a settlement on them. The first step in the process is the selection of a mediator, who may or may not be a matrimonial lawyer. Generally, parties agree on the selection of a mediator and often share the cost of mediation. Most mediators charge by the session and unlike attorneys, rarely require a retainer.
The role of the mediator is to serve as a neutral third party who assists in facilitating a dialogue between spouses aimed at helping them reach a resolution they find acceptable. This spirit of cooperation and sense of autonomy often results in the amicable dissolution of marriages and minimizes the conflicts and disputes that typically arise in traditional divorce litigation. The courts have also recognized the efficacy of mediation and have implemented mandatory mediation programs in certain divorce cases. These programs are often mandatory in divorce cases involving difficult child custody and visitation issues.
The duration of private mediation varies based on the complexity of the divorce matter and the exchange of information between the parties. Gathering and preparing all relevant documents and financial statements can be a daunting and tedious process. In recognition of this, mediators often recommend that parties, who have not already done so, retain private counsel to guide them through the mediation process. Generally, attorneys do not sit in on mediation sessions, but rather assist their client in preparing documents, drafting case summaries, providing legal advise on difficult issues and reviewing any agreement drafted by the mediator.
All decisions and stipulations reached by the parties are memorialized in a Memorandum of Understanding (MOU), which explains in detail how the parties reached the agreement. The MOU is not a contract and is not signed by the parties. The parties review the MOU for accuracy and bring it to their respective attorneys for review. If satisfactory, the terms of the MOU eventually form the basis of a Property Settlement Agreement (PSA), which is filed with the court. However, if at any time prior to the filing of the PSA a party is not satisfied with the mediation process or the MOU, he or she may walk away from the table and pursue traditional litigation or arbitration. A mediator, unlike binding arbitration, has no authority to impose a decision on the parties. In some cases, parties decide to mediate some issues and let the court determine the outcome on others.
Mediation is not for every case. It requires patience, understanding and a willingness to compromise with your soon to be ex-wife or husband. And though I have no statistical data on the success rate of mediation, I often read that couples that choose mediation are more likely to be satisfied with the process when compared to couples that pursue traditional divorce litigation. Ultimately, the decision is yours to make.
For those interested in mediation, the New Jersey Association of Professional Mediators and the Academy of Family Mediators provide useful information and resources on how to locate a mediator in your local area.
Posted by Jason Medina,
Medina, Martinez & Castroll, LLC